Frosty Boy Australia "Frozen Yoghurt" Website General Terms and Conditions of Use

This website, "www.frozenyoghurt.com.au" (the "Frozen Yoghurt Website") is owned and operated by Frosty Boy Australia ABN 22 049 221 458 ("Frosty Boy").


1. Your Acceptance


1.1 By using and/or visiting the Frozen Yoghurt Website (collectively, including all content and functionality available through the Frozen Yoghurt Website, such as ordering a product or making payments), you signify your agreement to:


a) these terms of use (the "Terms of Use”);


b) Frosty Boy's privacy policy (the "Privacy Policy”), found at frozenyoghurt.com.au/privacy-policy.


The Privacy Policy provides details of how Frosty Boy will store, handle and use any personal information that you provide to Frosty Boy.


If you do not agree to any of these Terms of Use, or you are not satisfied with the Privacy Policy, do not use the Frozen Yoghurt Website.


Importantly, by using and/or visiting the Frosty Yoghurt Website, you affirm that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent. You also affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use.


1.2 Frosty Boy may, in its sole discretion, modify or revise these Terms of Use, the Privacy Policy, or any of its other policies at any time without notification, and you agree to be bound by such modifications or revisions. Frosty Boy recommends that you periodically revisit the Terms of Use and Privacy Policy to ensure that you are kept up-to-date with any changes made. Nothing in these Terms of Use shall be deemed to confer any third-party rights or benefits unless otherwise specified.


2. Intellectual Property and your use of the Frozen Yoghurt website


2.1 Frosty Boy hereby grants you permission to access and use the Frozen Yoghurt Website as set forth in these Terms of Use, provided that:


i) You agree not to distribute in any medium any part of the Frozen Yoghurt website, including but not limited to User Content (defined below), without Frosty Boy's authorization.


ii) You agree not to access User Content (defined below) or any other content provided on the Frozen Yoghurt website through any technology or means other than those provided on the publicly accessible pages of the Frozen Yoghurt website itself.


iii) You agree not to use the Frozen Yoghurt website for any commercial use, without the prior written authorization of Frosty Boy. Prohibited commercial uses include any of the following actions taken without Frosty Boy’s express approval:


• sale of access to the Frozen Yoghurt website or its related services on another website;
• use of the Frozen Yoghurt website or its related services for the primary purpose of gaining advertising or subscription revenue;
• the sale of advertising on the Frozen Yoghurt website or any third-party website, targeted to specific User Content or other content;
• any use of the Frozen Yoghurt website or its related services that Frosty Boy finds, in its sole discretion, to use Frosty Boy's resources or User Content with the effect of competing with or displacing the market for Frosty Boy’s product.


iv) You agree not to use or launch any automated system (including but not limited to "robots”, "spiders”, or "offline readers”), that accesses the Frozen Yoghurt website in a manner that sends more request messages to the Frosty Boy servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. You agree not to collect or harvest any personally identifiable information from the Frozen Yoghurt website, for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Frozen Yoghurt website with respect to their User Content.


2.2 Further to the above, you agree that you will use the Frozen Yoghurt website in accordance with these Terms of Use and that you will not use the Frozen Yoghurt website for any unlawful purpose.


2.3 All content on the Frozen Yoghurt website except User Content (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, and the like ("Website Content") and the trademarks, service marks and logos contained therein ("Website Marks"), are owned by or licensed to Frosty Boy, and are subject to copyright and other intellectual property rights under the law. Website Content and User Content is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Frosty Boy reserves all rights (expressly and not expressly granted) in and to the Frozen Yoghurt website and the Website Content and Website Marks.


2.4 You may access Website Content and User Content solely:


• for your information and personal use;
• as intended through the normal functionality of the Frozen Yoghurt website.


2.5 You may access Website Content, User Content and other content only as permitted under these Terms of Use.


2.6 You agree to not engage in the use, copying, or distribution of any of the Website Content or User Content other than expressly permitted herein, including any use, copying, or distribution of User Content obtained through the Frozen Yoghurt website for any commercial purposes.


2.7 You agree not to circumvent, disable or otherwise interfere with security-related features of the Frozen Yoghurt website or features that prevent or restrict use or copying of any Website Content or User Content or enforce limitations on use of the Frozen Yoghurt website or the Website Content or User Content therein.


2.8 You understand that when using the Frozen Yoghurt website you will be exposed to User Content from a variety of sources, and that Frosty Boy is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, or for whatever reason objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Frosty Boy with respect thereto, and agree to indemnify and hold Frosty Boy, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.


2.9 "User Content” and User Conduct


As a Frozen Yoghurt website user you may submit video(s), image(s), recipe(s) or other such content ("User Content"). You understand that whether or not such User Content is published on the Frozen Yoghurt website, Frosty Boy does not guarantee any confidentiality with respect to any User Content.


You shall be solely responsible for your own User Content and the consequences of posting or publishing it, and Frosty Boy will have no liability in this regard, to the full extent permitted by law. In connection with User Content, you affirm, represent, and/or warrant that:


a. you own or have the necessary licenses, rights, consents, and permissions to use and authorize Frosty Boy to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Frozen Yoghurt website and these Terms of Use;


b. you will not submit any User Content that is unlawful, fraudulent, inaccurate, false, misleading or deceptive, or that Frosty Boy may deem to be in breach of any intellectual property, trade secret, privacy, publicity or other rights, defamatory, obscene, derogatory, pornographic, sexually inappropriate, violent, abusive, harassing, threatening, hateful, discriminatory, objectionable with respect to race, religion, origin or gender, not suitable for children aged under 15, or otherwise unsuitable for publication;


c. you will obtain prior consent from any person or property that may appear in your User Content;


d. your User Content shall not contain viruses or cause injury or harm to any person or entity;


e. you will comply with all applicable laws and regulations, including without limitation, those governing copyright, content, defamation, privacy, publicity and the access or use of others' computer or communication systems.


Frosty Boy reserves the right to refuse to post or display any User Content if Frosty Boy is of the reasonable opinion that the provisions of this clause 2.9 are breached by you.


2.10 For clarity, you retain all of your ownership rights in your User Content. However, by submitting User Content to Frosty Boy, you hereby grant Frosty Boy a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, adapt, modify, change, add to, detract from, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Frozen Yoghurt website and Frosty Boy's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Frozen Yoghurt website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Frozen Yoghurt website a non-exclusive license to access your User Content through the Frozen Yoghurt website, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Frozen Yoghurt website and under these Terms of Use. The above licenses granted by you in User Content terminate within a commercially reasonable time after you remove or delete your User Content from the Frozen Yoghurt website. You understand and agree, however, that Frosty Boy may retain, but not display, distribute, or perform, server copies of User Content that have been removed or deleted.


2.11 If you have any moral rights (or similar rights) in respect of User Content that you submit, you consent to Frosty Boy using the User Content from time to time in any way we wish (even if that use is contrary to those rights), including making material alterations thereto and exploiting them with or without attribution. Immediately on such moral rights beginning to exist, you waive those rights in perpetuity, to the maximum extent permitted by law. If any other person has moral rights in respect of User Content that you submit, you must ensure that they agree to the above before you submit the User Content.


2.12 Frosty Boy does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Frosty Boy expressly disclaims any and all liability in connection with User Content. Frosty Boy does not permit copyright infringing activities or infringement of any other intellectual property rights on the Frozen Yoghurt website, and Frosty Boy will remove any User Content if Frosty Boy is concerned or is properly notified that such User Content infringes on another's intellectual property rights, or if Frosty Boy considers the content to be unsavoury or objectionable. Frosty Boy reserves the right to remove User Content without prior notice, at its absolute discretion.


2.13 Without limiting any other terms herein, you indemnify Frosty Boy for any breach of any of the terms or warranties contained herein.


3. Delivery of products


3.1. In order for any product that you order from the Frozen Yoghurt website ("Product”) to be delivered to you, your nominated delivery address must be within Frosty Boy’s delivery jurisdiction within Australia. Frosty Boy will notify you at the time of your order if your nominated delivery address is not in an area where Frosty Boy provides delivery services.


3.2. Risk and title of your ordered Products passes to you upon delivery of your ordered Products at your nominated delivery address.


3.3 You should inspect the product(s) immediately upon receipt at your nominated delivery address and you must notify us within five (5) business days of delivery of any shortfall, incorrect orders or other problems with the products provided.


3.4 We will always endeavour to dispatch your product purchase to you as soon as possible. From time to time there may be a slight delay in delivery and we may take a little longer than the advertised delivery times due to a stock shortfall or for other unexpected reasons. If, for any reason, we are unable to dispatch your order, we will notify you within two (2) business days.


3.5 We will not be responsible for any delay in delivery of any products caused by, or in any way connected with, any other cause beyond the reasonable control of Frosty Boy (including but not limited to shortfall of supplies, strikes, industrial disputes).


4. Returns and Refunds


4.1. To the extent permitted by law, Frosty Boy will only accept returned Products and consider issuing refunds in limited circumstances. If you believe that you have a legitimate reason to return products and/or request a refund, please contact Frosty Boy Australia at 1 Dixon Street, Yatala QLD 4207, Ph: 07 3806 2888, during business hours Monday to Friday 9am to 4.30pm.


4.2. In any event, you accept that returned Products will generally only ever be accepted and a refund considered if the Products are returned in their original state and packaging. You agree that any returned Product (including its packaging) that has been lost, consumed, damaged, defaced, altered or opened in any way will not be refunded upon return to Frosty Boy.


5. Products, Prices and Orders


5.1 All products advertised by Frosty Boy (for example on the Frozen Yoghurt website) are subject to availability.


5.2 The price payable for any product(s) is the price specified on the Frozen Yoghurt website at the time of placing an order. Prices displayed on the Frozen Yoghurt website may change at any time. Prices are displayed in Australian dollars (AUD) unless otherwise specified.


5.3. Any order placed on the Frozen Yoghurt website for a Product is an offer by you to purchase a Product for the price specified on the Frozen Yoghurt website at the time you place your order. You acknowledge that by placing an order you are agreeing to pay for and accept delivery of the Product(s) ordered.


5.4. Online payments are to be made via the nominated credit card providers only. Your order will be processed and dispatched once payment has cleared.


5.5 Postage / delivery charges are applicable to all orders and are set out on the Frozen Yoghurt website, and are incorporated into the final cost provided on the Frozen Yoghurt website.


6. Liability


6.1 To the fullest extent permitted by law, Frosty Boy, its directors, employees, agents and representatives, exclude all liability, howsoever arising (including from negligence), for any loss or damage whether direct, indirect, special or consequential, or for personal injury which is suffered or sustained, by any user, arising in any way out of or in connection with the Frozen Yoghurt website, including, but not at all limited to such loss, damage or injury arising out of the following:


(a) using the Frozen Yoghurt website;
(b) purchasing and/or using any products supplied by Frosty Boy on the Frozen Yoghurt website;
(c) any errors or omissions from any information on the Frozen Yoghurt website including typographical or photographical errors;
(d) any technical malfunction, error, virus, delay or interference on the Frozen Yoghurt website;
(e) a failure or omission on the part of Frosty Boy to comply with its obligations under these Terms of Use.


6.2 To the fullest extent permitted by law, Frosty Boy and its agents:


(a) do not make any representation, warranty or endorsement of any kind, whether express or implied, with respect to the information or material contained herein or the accuracy, reliability or completeness thereof;
(b) expressly disclaim all representations and warranties, express or implied, with respect to the products advertised or otherwise featured on the Frozen Yoghurt website.


6.3 To the extent permitted by law, Frosty Boy assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, computer viruses, bugs, unauthorized intervention, fraud, technical failures, theft or destruction, or unauthorized access to the Frozen Yoghurt website, or for alteration of any information provided by a Frozen Yoghurt website user.


6.4 You hereby waive and release any and all claims that you may have against Frosty Boy, its directors, employees, agents and representatives in connection with, or arising out of, or incidental to, your access to the Frozen Yoghurt website and/or your purchase and/or use of any Products advertised therein.


6.5 The Trade Practices Act 1974 (Cth) and certain state and territory legislation implies terms, conditions and warranties into some contracts for the supply of goods or services and prohibits the exclusion, restriction and modification of such terms. If Frosty Boy breaches any of these terms then, their liability for the breach is, where permitted by law and at Frosty Boy’s election, limited to:
(a) in the case of goods supplied or offered by Frosty Boy – the repair or replacement of the goods, or supply of equivalent goods, or payment of the cost of doing this;
(b) in the case of services supplied or offered by Frosty Boy – the re-supply of the services or payment of the cost of doing this.


7. Indemnity


7.1 You indemnify Frosty Boy, its directors, employees, agents and representatives, from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred or suffered as a direct or indirect consequence of you using the Frozen Yoghurt website and/or purchasing and using any products advertised herein.


8. Links


8.1 Frosty Boy is not responsible for the content of any site linked to or from the Frozen Yoghurt website. Any links provided are for your convenience only and are not an endorsement of the companies or products referred to on sites to which this Frozen Yoghurt website links and Frosty Boy has no responsibility for the condition, content or operation of any such sites and shall not be liable for any damages or injury arising out of or resulting from access to or use of such sites. If you click on a link to another site, you do so entirely at your own risk.


9. Termination of Site


9.1 Frosty Boy reserves the right to modify or suspend services on the Frozen Yoghurt website, to terminate any or all parts of the Frozen Yoghurt website (where possible), or to terminate your ability to purchase products from the Frozen Yoghurt website at any time without notice. In this event, the liability and indemnity provisions provided in these Terms of Use will survive such termination, and all rights of Frosty Boy granted herein are otherwise reserved.


10. Governing Law


10.1 These Terms of Use shall be governed by and construed in accordance with of the laws of Queensland, Australia. You irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of Queensland, Australia. If any provision of this legal statement shall be unlawful, void or for any reasons unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.